Last updated: March 15th 2017
PLEASE READ THE FOLLOWING CAREFULLY BEFORE DOWNLOADING AND/OR USING THIS WEBSITE, APP OR SERVICE.
Celebrate Labs Inc. and its subsidiaries, representatives, affiliates, agents, officers or directors (collectively, “Celebrate Labs” “we”, “us” or “our”) make available websites and applications for mobile, tablet, and other smart devices (the “App”) that allow you to curate and manage a directory of your contacts and corresponding significant dates and events such as birthdays, and helps to facilitate your celebration of those events with others by offering reminders, gift suggestions, and original templates to send greetings and messages (collectively, the “Services”).
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH STATES THAT, UNLESS YOU OPT OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES, BOTH PARTIES AGREE TO RESOLVE ALL DISPUTES THROUGH BINDING INDIVIDUAL ARBITRATION, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS. PLEASE READ SECTION 19 CAREFULLY.
2. Using the Services.
2.1. Who May Use the Services. The Services are only intended and licensed for individuals aged thirteen (13) years or older. If you are under 13 years, you may not download or use the App or access the Services. If you are between 13 and 18 years of age, then you must review this Agreement with your parent or guardian before using the Services, and your parent or guardian must agree to this Agreement on your behalf. By using the Services, you represent that you (or your parent or guardian on your behalf) can form a binding contract under applicable law, are not barred from using the Services under the laws of the United States or any other applicable jurisdiction, and that you will comply with this Agreement and all applicable local, state, national and international laws, rules and regulations. You may not use the Services on behalf of an entity of the United States Government. The Services are not intended for distribution to or use in any country where such distribution or use would violate local law or would subject us to any regulations in another country. We reserve the right to limit the Services in any country.
2.2. Your Account. In order to use certain aspects of the Services, you may be required to register for and maintain a personal user account (“Account”). As part of the Account registration process, you may be required to submit certain personal information, such as your name, mobile phone number, email address or birthday. You agree to submit and maintain accurate, complete and up-to-date information in your Account. You are responsible for all activity that occurs under your Account and you agree to maintain the security and secrecy of your Account username and password at all times. You may not allow anyone else to access or use your Account and agree to notify us immediately of any unauthorized use of your Account. We may close or disable your Account at any time and for any reason, including for your violation of this Agreement. If we disable your Account for a violation of this Agreement, you will not create another Account without our permission. After your Account has been closed, we are not responsible for retaining or storing any of your Account data. While you may synchronize some or all of Your Content (as defined in Section 3.1 below) that you add to your Account for your use of the Services across multiple devices and to backup and restore Your Content that has been synchronized, this information might become unavailable for any number of reasons, including technical malfunctions or our termination of your Account. We cannot guarantee that Your Content that you have chosen to upload to our servers will always be available, so we recommend keeping a separate copy of Your Content.
2.3. Using Third Party Services. The Services make it easy for you to draft messages, select and purchase gifts, and perform other similar actions to celebrate important dates and events. In order to complete these actions, however, you will be directed to third party services and applications outside of our Services (“Third Party Services”). For example, in order to send a message that you created using our App, our App will prepare and format that message so that the third party messaging service of your choosing can deliver it to your recipient. This may require you to create or sign into an account to use these Third Party Services. You are responsible for any fees that may be charged and collected by such Third Party Services, such as their account usage fees or purchase price and delivery fees for gifts purchased through the Third Party Services. These Third Party Services operate separately from our Services and we are not affiliated with, and we are not responsible for the conduct or practices of these Third Party Services.
2.4. License. Subject to your ongoing compliance with all the terms and conditions of this Agreement any additional usage requirements and policies we may provide to you from time to time, we hereby grant to you a personal, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable limited license (“License”) to: (i) install and use the App on a mobile telephone, device or tablet (each a “Device”) that you own or control subject to any applicable Usage Rules (deﬁned below); (ii) access and use the Services in accordance with this Agreement; and (iii) reproduce and edit our message templates for the purpose of crafting your own greeting and to distribute the same to a single intended recipient as facilitated by the Services, and in each case for your personal or internal, noncommercial use.
2.5. Usage Rules. If you are downloading the App from a third party platform or service such as Apple or Google (“Distributor”), please be aware that the Distributor may have established usage rules which also govern your use of the Services (“Usage Rules”). We speciﬁcally refer to the Usage Rules of Apple as a Distributor below in the section entitled “Apple Requirements and Usage Rules”, but other Usage Rules may be applicable depending on where the App has been downloaded from. You acknowledge that, prior to downloading the App from a Distributor, you have had the opportunity to review and understand, and will comply with, its Usage Rules. The Usage Rules that are applicable to your use of the Services are incorporated into this Agreement by this reference. You represent that you are not prohibited by any applicable Usage Rules and/or applicable law from using the Services; if you are unable to make such a representation, you are prohibited from downloading and/or using the Services.
2.6. Apple Requirements and Usage Rules. If you downloaded the App from the Apple, Inc. (“Apple”) App Store, then: (i) the License granted herein is limited to your use of the App on an Apple iPhone, iPod Touch, iPad, or other Apple-branded product that you own or control and that runs the iOS; and (ii) your use of the App is also subject to the Usage Rules established by Apple, including those set forth in the Apple App Store Terms of Service, effective as of the date that you enter into this Agreement. You acknowledge and agree that in the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price you paid for the App, if any, to you; and that to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility. By downloading and using the App, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. This Agreement incorporates by reference Apple’s Licensed Application End User License Agreement, for purpose of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
2.7. Prohibited Activities. You agree not to, and shall not permit any third party to: (i) sublicense, redistribute, lease, lend or rent any part of the Services or any software used in or for the Service; (ii) except as permitted herein, make the App or Services available over a network where it could be used by multiple devices at the same time; (iii) except as permitted herein or by applicable law, disassemble, reverse engineer, decompile, decrypt, or attempt to derive the source code of the any part of the Services or any software used on or for the Service, including the App; (iv) copy (except for back-up purposes), improve, modify, or create derivative works of the Services or any part thereof (except for creating your greetings using our message templates); (v) circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content (deﬁned in Section 4.2 below) or that enforce limitations on use of the Services; (vi) use the Services to transmit any of Your Content (defined in Section 3.1 below) that contains software viruses, or other harmful computer code, ﬁles or programs; (vii) use or launch any automated system (including without limitation, “robots” and “spiders”) in connection with, or to access, the Services; (viii) use the Services to breach a third party’s privacy rights; (ix) use the communications systems provided by the Services to send unauthorized and/or unsolicited commercial communications; (x) remove, alter or obscure any proprietary notice or identiﬁcation, including copyright, trademark, patent or other notices, contained in or displayed on or via the App; (xi) use our name, logo or trademarks without our prior written consent; and/or (xii) use the Services to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches this Agreement.You must access and use the Services only for legal, authorized, and acceptable purposes. You will not use (or assist others in using) the Services in ways that: (i) violate, misappropriate, or infringe our rights or the rights of our users, or others, including privacy, publicity, intellectual property, or other proprietary rights; (ii) are unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise dishonest, inaccurate, inappropriate, malicious or fraudulent; (iii) creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement; (iv) involve publishing falsehoods, misrepresentations, or misleading statements; (v) impersonate another person; (vi) involve sending illegal or impermissible communications such as bulk messaging, auto‑messaging, auto‑dialing, and the like; (vii) are unfair or deceptive under the consumer protection laws of any jurisdiction; (viii) transmit the contact information or any personally identiﬁable information of any third party unless you have ﬁrst obtained the express consent of that third party to transmit his/her contact information or personally identiﬁable information; (ix) involve any non‑personal or non-internal use of the Services unless otherwise authorized by us in writing or (x) otherwise breaches this Agreement.
2.8. Your Use of the App in a Vehicle. If you are using the Services in a vehicle, you agree to: (i) comply with all applicable trafﬁc laws; and (ii) subject to the foregoing, if you are the driver, not to use the Services unless your vehicle is stationary and legally parked.
2.9. Carrier Charges. Your use of the Services may require and utilize internet connection or data access. To the extent that any such Third Party Service or carrier charges for internet or data usage are applicable, you agree to be solely responsible for those charges. In addition, if you choose to use the Services to facilitate sending an MMS or SMS through a Third Party Service, then you understand and agree that you may be charged your telecommunications carrier’s messaging, data and other rates and fees for doing so and will be subject to that Third Party Service’s terms and conditions.
2.10. Share With Your Friends Service. The Services include an invitation service that enables you to invite your friends and contacts to download and use the Services (the “Share With Your Friends Service”). If you choose to participate in the Share With Your Friends Service, you acknowledge and agree: (i) to only send invitations to your friends and contacts whom you know; (ii) not to misrepresent your relationship with us or make any warranty or representation on our behalf, which would in any event be void and of no effect; and (iii) to comply at all times with this Agreement and applicable law.
3. Your Content.
3.1. Using Your Content. We may, as part of the Services, allow you to submit, upload, publish or otherwise make available to us or other users through the Services, content and information which may include personal information about yourself or your contacts or information stored in your calendar (“Your Content”). You expressly agree that we are simply acting as a passive conduit for you to manage Your Content through your website Account and/or your local device application and to distribute Your Content through third party services. You are solely responsible for Your Content and the consequences of sending or posting Your Content, and you agree to indemnify and hold us harmless, and expressly release us, from any and all liability arising from Your Content. You hereby grant to us and our agents, subsidiaries, affiliates, licensees, successors and assigns a sublicensable, transferable, royalty-free, nonexclusive, worldwide and fully paid-up license to reproduce, distribute, publicly display, publicly perform, transmit, communicate to the public, resize (as technologically reasonably necessary but not to otherwise modify Your Content), and otherwise use and exploit (collectively “Use”) Your Content to facilitate managing, posting or sending Your Content to your designated recipients in accordance with your chosen delivery method and your general use of the Services. You represent and warrant that you own or have the necessary rights and permissions to use Your Content, and to grant the foregoing license to us. You retain all of your ownership rights in Your Content. All rights not expressly granted by you to us in this Agreement are hereby reserved by you. While we are not required to do so, we may, to the extent it is technologically feasible, access, review, screen and delete Your Content that you have chosen to upload to your Account at any time for any reason, including if we think Your Content violates this Agreement. We do not have access to Your Content on your local device. You alone remain responsible for Your Content. We reserve the right to access, read, preserve, and disclose any information that we obtain in connection with the Services as we reasonably believe is necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, (ii) enforce this Agreement, including investigation of potential violations thereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to your user support requests, or (v) protect the rights, property or safety of our users or the public.
3.2. Your Contacts, Address Book and Calendar. You may provide us certain event and contact information as part of your use of the Services. You may choose to allow us to access the contacts in your mobile phone address book and add your contacts’ information to your event lists in the App or as part of the Services. You may also choose to allow us to access your calendar application on your mobile phones, and add information about dates and events from your calendar to your events list or contacts profile in the App as part of the Services. You represent and warrant that you are authorized to provide us such information to allow us to provide the Services and you will not use your contacts’ information or information stored in your calendar application in any way except in the ways for which you have been authorized to use the information.
3.3. Feedback. You are not required to provide us any feedback or suggestions regarding our App or Services (“Feedback”). However, if you do, we thank you, and we will own that Feedback and can use it or not use it in our sole discretion without payment, accreditation or other compensation to you. You hereby irrevocably assign, and will assign, to Celebrate Labs Inc. any and all rights, title and interest you may have in and to such Feedback and agree that we shall have the right to use such Feedback and related information in any manner we deem appropriate. You agree that you will not submit to us any information or ideas that you consider to be confidential or proprietary to you or a third party.
4. Our Content.
4.1. The Services are licensed, and not sold, to you under this Agreement and you acknowledge that we and our licensors retain all title, rights, interests and Intellectual Property Rights (deﬁned below) in and to the Services or any software used in or for the Service, including the App, and all enhancements, modifications, and derivatives and any materials created, authored, developed or provided by or on behalf of us in connection with this Agreement. All references in this Agreement to the Services include: (i) the Content and Marks (each as deﬁned below), (ii) the App and related software, including the source and object code therein; (iii) associated documentation; and (iv) related websites. We reserve all rights not expressly granted herein to the Services. “Intellectual Property Rights” means any and all rights, titles and interests in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, whether foreign or domestic. All rights not expressly granted by us to you herein are hereby reserved by us.
4.2. The content on the Services, including without limitation, the text, message templates, information, documents, descriptions, products, software, graphics, photos, sounds, videos, interactive features, and services (excluding Your Content) (collectively, the “Content”) and the trademarks, trade dress, service marks, domains, logos and distinctive brand features associated with the Services (“Marks”), are owned by us and/or our licensors and may be protected by applicable copyright or other intellectual property laws and treaties. Content on the Services is provided to you “AS IS” and solely for your personal or internal use and, except as expressly provided herein, may not be used, copied, modiﬁed, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without our prior written consent. You may not Use our Marks unless you have our express permission. All other trademarks, service marks, and logos used on the Services are the trademarks, service marks, or logos of their respective owners.
4.3. Information Description. We attempt to be as accurate as possible. However, we cannot and do not warrant, endorse, support, represent or guarantee that the Content available on the Services or communications made using the Services is accurate, complete, truthful, reliable, current, or error-free. We reserve the right to make changes in or to the Content, or any part thereof, in our sole judgment, without the requirement of giving any notice prior to or after making such changes to the Content.
5. Other Users and Third Parties.
5.2. Third Party Software. Portions of the Services include third party software that may be subject to the terms and conditions imposed by the licensors of that third party software (“Third Party Terms”). A list of the third party software and related Third Party Terms is available at http://www.bdaysapp.com/open-source-compliance. If there is a conﬂict between any Third Party Terms and the terms of this Agreement, the Third Party Terms shall prevail in connection with the related third party software.
5.3. Advertisements. The Services may contain advertisements. In consideration for us letting you access and use the Services, you agree that we, our affiliates, and our third party partners may place advertising on the Services. Because the Services contain content that you and other users provide us, advertising may sometimes appear near Your Content.
5.4. Respecting Copyright. We respect the intellectual property rights of others and expect you and other users of the Services to do the same. Since we do not have the ability to access Your Content or the content of other users that is locally stored on any Device, we cannot remove infringing material from a user’s Device. If, however, we become aware that one of our users has repeatedly infringed the intellectual property rights of others, we will take commercially reasonable steps within our power to terminate the user’s use of the Services, which may include terminating that user’s Account. To the extent it is now, or may be, technologically feasible to access any infringing material that we become aware of, we will abide by the “Notice and Take Down” procedures as provided for by the U.S. Copyright Act and will therefore take commercially reasonable steps to expeditiously remove from our Services such infringing material. You can read more about that in our Copyright Policy.
7. Payments. You agree to pay the License fee, if any, prior to accessing the Services or downloading the App. Any such fee will be displayed on the Services or on the Distributor website or marketplace at the time of downloading. Other than purchases made using Third Party Services or through Third Party Sites, you may also have the option to purchase additional features within the Services by using the tools that we make available in the Services (“In-App Products”). The prices for any In-App Products are displayed on the Services. Any of the foregoing payments shall be done through the Distributor that you originally downloaded the App from and in accordance with any additional terms of that Distributor that are applicable to your use of, access to and purchase of the Services or In-App Products, and which are disclosed to you at the time of purchase, as well as the general terms applicable to all other purchases made through that Distributor. You acknowledge that the Distributor’s payment terms will govern how you may make payments to us as well as how such payments may be changed or cancelled. We are not responsible and shall not be held liable for any payment processing errors (including card processing, identity verification analysis and regulatory compliance) or fees or other payment related issues arising from purchases of In-App Products made through the Distributor. You agree: (i) to only provide valid and current information for yourself; (ii) that the applicable Distributor may process transactions initiated by you on our behalf; and (iii) except as expressly set forth herein (or any applicable Usage Rules), all purchases and subscriptions are ﬁnal and non-refundable.
8. Warranty Disclaimers. THE APP AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY LAW, STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE AND OUR SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE APP OR SERVICES WILL OPERATE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE APP OR SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL CODE OR THAT WE WILL CORRECT ANY ERRORS IN THE SERVICES. YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES, HARM, DAMAGE, OR LOSS TO YOU OR ANY THIRD PARTY, WHETHER WITHIN OR WITHOUT THE SCOPE OF THE APP’S OR SERVICES’ INTENDED OR CONVENTIONAL PURPOSE, THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING, WITHOUT LIMITATION, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS, OR IN CONNECTION WITH ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS. YOUR USE OF THE APP AND SERVICES IS ENTIRELY AT YOUR SOLE DISCRETION AND RISK. WE ARE NOT RESPONSIBLE FOR AND ARE NOT OBLIGATED TO CONTROL THE ACTIONS OR INFORMATION (INCLUDING CONTENT) OF OUR USERS OR OTHER THIRD PARTIES. YOU RELEASE US, OUR SUBSIDIARIES, AFFILIATES, AND OUR AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS, AND AGENTS (TOGETHER, THE “CELEBRATE LABS PARTIES”) FROM ANY CLAIM, COMPLAINT, CAUSE OF ACTION, CONTROVERSY, OR DISPUTE (TOGETHER, “CLAIM”) AND DAMAGES, KNOWN AND UNKNOWN, RELATING TO, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH ANY SUCH CLAIM YOU HAVE AGAINST ANY THIRD PARTIES. YOU WAIVE ANY RIGHTS YOU MAY HAVE UNDER CALIFORNIA CIVIL CODE §1542, OR ANY OTHER SIMILAR APPLICABLE STATUTE OR LAW OF ANY OTHER JURISDICTION, WHICH SAYS THAT: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL WE OR OUR AFFILIATES AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, ASSIGNS AND AGENTS, OR ANY DISTRIBUTOR, BE LIABLE FOR ANY LOSS OF MONEY, PROFITS, DATA, GOODWILL, OR REPUTATION, OR ANY SPECIAL, INDIRECT, DIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT ARISE UNDER THIS AGREEMENT OR THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE APP OR SERVICES WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF WE OR ANY DISTRIBUTOR HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, AND WITHOUT LIMITING THE GENERALITY OF THIS SECTION TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT OUR TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES AND LOSSES UNDER THIS AGREEMENT, OR IN CONNECTION WITH YOUR USE OF, OR INABILITY TO USE, THE APP OR SERVICES, SHALL NOT IN ANY CIRCUMSTANCE EXCEED ONE HUNDRED DOLLARS (US$100). THE PARTIES AGREE THAT THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THE FOREGOING LIMIT, AND THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN SUCH CASES, THE LIABLITY OF THE CELEBRATE LABS PARTIES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
10. Indemnity. You agree to defend, indemnify and hold harmless us and our afﬁliates, and our respective ofﬁcers, directors, employees, licensors, assigns and agents, and any Distributor, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorneys’ fees) arising from: (i) your use of, or inability to use, the Services, including, without limitation, your use and importing of Third Party Content from Third Party Sites and Third Party Services; (ii) your violation of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) Your Content, including your interaction with another user or third party. Without derogating from or excusing your obligations under this section, we reserve the right to participate with counsel of our own choosing (at our own expense), and may, but are not under any obligation to, assume the exclusive defense and control of any matter which is subject to an indemniﬁcation by you. You agree not to settle any matter subject to an indemniﬁcation by you without ﬁrst obtaining our express written approval.
11. Government Use. If you are a part of an agency, department, or other entity of the United States Government (“Government”), the use, disclosure or transfer of the App is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulations as applied to military agencies. The App is a “commercial item”, “commercial computer software” and “commercial computer software documentation”. In accordance with such provisions, any use of the App by the Government shall be governed solely by this Agreement.
12. No Obligation. Except as required by applicable law, we are not obligated to maintain or support the Services. Both parties acknowledge that the applicable Distributor has no obligation to provide you with any maintenance and support services with respect to the Services. We may discontinue some or all of our Services, including certain features and the support for certain devices and platforms, at anytime.
13. Relationship with Distributor. Both parties acknowledge that: (i) this Agreement is concluded between us and you only; (ii) as between us and Distributor, we are solely responsible for the Services and the content thereof; and (iii) notwithstanding the foregoing, the applicable Distributor and its subsidiaries are third party beneﬁciaries of this Agreement, and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneﬁciary thereof.Unless expressly stated otherwise in the applicable Usage Rules, we, and not a Distributor, are solely responsible for addressing any questions, comments or claims relating to the Services and your possession and use thereof, including but not limited to: (i) product liability claims; (ii) any claim that the Services fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation and (iv) intellectual property claims. If you have any questions, complaints, or claims regarding the Services, please contact us at: Email: email@example.com.
14. Notice for California Users. Under California Civil Code Section 1789.3, users of the Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 4451254 or (800) 9525210. You may contact us at firstname.lastname@example.org or at:
Celebrate Labs Inc.
995 Market Street
San Francisco, California 94103
15. Export Laws. You agree to comply fully with all applicable export laws and regulations to ensure that neither the Services nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. You will comply with all applicable U.S. and non-U.S. export control and trade sanctions laws (“Export Laws”). You will not, directly or indirectly, export, re-export, provide, or otherwise transfer the Services: (a) to any individual, entity, or country prohibited by Export Laws; (b) to anyone on U.S. or non-U.S. government restricted parties lists; or (c) for any purpose prohibited by Export Laws, including nuclear, chemical, or biological weapons, or missile technology applications without the required government authorizations. You will not use or download the App or Services if you are located in a restricted country, if you are currently listed on any U.S. or non-U.S. restricted parties list, or for any purpose prohibited by Export Laws, and you will not disguise your location through IP proxying or other methods.
16. Updates and Upgrades. We may, from time to time provide updates or upgrades to the Services or any software used on or for the Service, including the App (each, a “Revision”), but we are not under any obligation to do so. Such Revisions will be supplied according to our then-current policies, which may include automatic updating or upgrading without any additional notice to you and you may be able to adjust these automatic updates through your Device’s settings. You consent to any such automatic updating or upgrading of the Services. All references herein to the Services shall include Revisions. This Agreement shall govern any Revisions that replace or supplement the original Services or any software used on or for the Service, including the App, unless the Revision is accompanied by a separate license agreement that governs the Revision.
18.1. Prior Use. Even if you used or accessed the Services prior to the date you accepted this Agreement, you hereby acknowledge and agree that the terms of this Agreement are effective on the date you first accessed the Services or accepted this Agreement, whichever is earlier and this Agreement will govern your use of the Services as of that date, to the greatest extent allowed under applicable law.
18.2. Assignment. This Agreement, and any rights and licenses granted, or obligations imposed, hereunder, may not be transferred, assigned, or delegated by you but may be transferred, assigned, or delegated by us without restriction or notiﬁcation. Except as contemplated herein, this Agreement does not give any third party beneficiary rights.
18.3. Modiﬁcation. We reserve the right to modify this Agreement at any time by sending you an in-App notiﬁcation and/or publishing the revised Agreement on the Services. The revised version will be effective at the time we post it unless it contains material changes. If we make material changes to this Agreement, such changes will be effective ten (10) days following our notice to you. By your continued use of the Services after a revised Agreement has been posted, you accept those changes and agree to be bound by the revised Agreement.
18.4. Language of Agreement. This Agreement is written in English and the governing language shall be English. The use of the singular includes the plural and vice versa, as the context may require. By entering into this Agreement, you hereby waive, to the extent legally permitted, any applicable law requiring that this Agreement be localized to meet your language or other local requirements.
18.5. Dispute Resolution. You are subject to the “Arbitration” section below except in certain instances. Please also read that section carefully and completely. If you are not subject to the “Arbitration” section below you agree that you will resolve any Claim you have with us relating to, arising out of, or in any way in connection with this Agreement, and any and all related actions under any theory including negligence or other torts (each, a “Dispute,” and together, “Disputes”) and such Disputes, whether in court or arbitration, shall be governed by and construed in accordance with the laws of the State of California, without regard to its conﬂict of laws rules. You irrevocably agree to submit to the personal and exclusive jurisdiction of the competent courts located in the county of Santa Clara, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, we may seek injunctive relief in any court of competent jurisdiction.
19. ARBITRATION. PLEASE READ THIS SECTION CAREFULLY BECAUSE IT CONTAINS ADDITIONAL PROVISIONS APPLICABLE ONLY TO OUR USERS. IT REQUIRES YOU TO SUBMIT TO BINDING INDIVIDUAL ARBITRATION OF ALL DISPUTES, EXCEPT FOR THOSE THAT INVOLVE INTELLECTUAL PROPERTY DISPUTES AND EXCEPT THOSE THAT CAN BE BROUGHT IN SMALL CLAIMS COURT. THIS MEANS YOU ARE WAIVING YOUR RIGHT TO HAVE SUCH DISPUTES RESOLVED IN COURT BY A JUDGE OR JURY. THIS SECTION ALSO LIMITS THE TIME YOU HAVE TO START AN ARBITRATION OR, IF PERMISSIBLE, A COURT ACTION. FINALLY, THIS SECTION WAIVES YOUR RIGHT TO HAVE YOUR DISPUTE HEARD AND RESOLVED AS A CLASS ACTION, CLASS ARBITRATION, OR A REPRESENTATIVE ACTION.
19.1. “Excluded Dispute” means any Dispute relating to the enforcement or infringement of your or our intellectual property rights (such as copyrights, trademarks, domains, logos, trade dress, trade secrets, and patents). For clarity and notwithstanding the foregoing, those Disputes relating to, arising out of, or in any way in connection with your rights of privacy and publicity are not Excluded Disputes.
19.2. Federal Arbitration Act. The United States Federal Arbitration Act governs the interpretation and enforcement of this Section 19, including any question whether a Dispute between us and you is subject to arbitration.
19.3. Agreement to Arbitrate. We and you both agree to waive the right to a trial by judge or jury for all Disputes, except for the Excluded Disputes. We and you agree that all Disputes (except for the Excluded Disputes), including those relating to, arising out of, or in any way in connection with your rights of privacy and publicity, will be resolved through final and binding arbitration. We and you agree not to combine a Dispute that is subject to arbitration under this Agreement with a Dispute that is not eligible for arbitration under this Agreement.
19.4. Administration. The arbitration will be administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules in effect at the time the arbitration is started, including the Optional Rules for Emergency Measures of Protection and the Supplementary Procedures for Consumer-Related Disputes (together, the “AAA Rules”). The arbitration will be presided over by a single arbitrator selected in accordance with the AAA Rules. The AAA Rules, information regarding initiating a Dispute, and a description of the arbitration process are available at www.adr.org. The arbitrator will decide whether a Dispute can be arbitrated. The location of the arbitration and the allocation of fees and costs for such arbitration shall be determined in accordance with the AAA Rules. Notwithstanding the AAA Rules, we will reimburse you for all the AAA administrative fees in Disputes that are subject to the Supplementary Procedures for Consumer-Related Disputes, unless the arbitrator determines that a Dispute was filed for purposes of harassment or is patently frivolous.
19.5. Opt-Out Procedure. You may opt out of this agreement to arbitrate. If you do so, neither party can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing postmarked within 30 days of the later of: (i) the date that you first accepted this Agreement; and (ii) the date you became subject to this arbitration provision. You must use this address to opt-out:
Celebrate Labs Inc.
995 Market Street
San Francisco, California 94103
You must include: (1) your name and residence address; (2) the mobile phone number associated with your account; and (3) a clear statement that you want to opt out of this Agreement’s agreement to arbitrate.
19.6. Small Claims Court. As an alternative to arbitration, if permitted by your local “small claims” court’s rules, you may bring your Dispute in your local “small claims” court, as long as the matter advances on an individual (non-class) basis.
19.7. Time Limit to Start Arbitration. We and you agree that for any Dispute (except for the Excluded Disputes) we and you must commence an arbitration proceeding within one year after the Dispute first arose; otherwise, such Dispute is permanently barred. This means that if we or you do not commence an arbitration within one year after the Dispute first arose, then the arbitration will be dismissed because it was started too late.
19.8. No Class Actions, Class Arbitrations, or Representative Actions for Users. We and you each agree that if you are a user of the Services, each of we and you may bring Disputes against the other only on our or your own behalf, and not on behalf of any other person or entity, or any class of people. We and you each agree not to participate in a class action, a class-wide arbitration, Disputes brought in a private attorney general or representative capacity, or consolidated Disputes involving any other person or entity in connection with any Dispute.
19.9. Severability. If the prohibition against class actions and other Disputes brought on behalf of third parties is found to be unenforceable for a Dispute, then all of the provisions above under the caption “Arbitration” will be null and void as to that Dispute.
19.10. Place to File Permitted Court Actions. If you opt out of the agreement to arbitrate, if your Dispute is an Excluded Dispute, or if the arbitration agreement is found to be unenforceable, you agree to be subject to the provisions in the “Dispute Resolution” section set forth above.